Appeal brought on 15 September 2009 by ISD Polska sp. z o. o., Industrial Union of Donbass Corporation, ISD Polska sp. z o. o. (formerly Majątek Hutniczy sp. z o. o.) against the judgment delivered on 1 July 2009 in Joined Cases T-273/06 and T-297/06 ISD Polska and Others v Commission
(Case C-369/09 P)
Language of the case: French
Parties
Appellants: ISD Polska sp. z o. o., Industrial Union of Donbass Corporation, ISD Polska sp. z o. o. (formerly Majątek Hutniczy sp. z o. o.) (represented by C. Rapin and E. Van den Haute, avocats)
Other party to the proceedings: Commission of the European Communities
Form of order sought
declare the appeal admissible;
set aside the judgment of the Court of First Instance of the European Communities (Eighth Chamber) of 1 July 2009 in Joined Cases T-273/06 and T-297/06;
grant in their entirety, or in the alternative grant in part, the forms of order sought before the Court of First Instance of the European Communities in Joined Cases T-273/06 and T-297/06;
order the Commission to pay all the costs;
should the Court of Justice find that there is no need to adjudicate, order the Commission to pay the costs in accordance with Article 69(6) in conjunction with Article 72(a) of the Rules of Procedure of the Court of Justice.
Pleas in law and main arguments
The appellants put forward three grounds of appeal.
By their first ground of appeal, they challenge the Court of First Instance's assessment that Protocol No 8 on the restructuring of the Polish steel industry, annexed to the Act of Accession of the Republic of Poland to the European Union,
1 provides in point 6 for the retroactive application of its provisions. The appellants submit that no retroactive effect can be derived from the wording, purpose or scheme of that provision, which merely states that the undertakings listed in Annex I to Protocol No 8 can receive aid, within certain limits, in the period from 1997 to 2003. That provision means, in other words, that the calculation of the aid which could be attributed to the recipient undertakings up to the end of 2003 must take into account retrospectively the amount of aid already allocated, but not retrospectively regard the aid allocated as unlawful. That interpretation is moreover shared by both the Commission and the Council, which, the Commission in a proposal for a decision and the Council in a decision, found that the commitments made in Protocol No 8 had been complied with.
By their second ground of appeal, the appellants submit that the Court of First Instance erred in law in finding, first, that undertakings in receipt of aid in principle could have a legitimate expectation as to the lawfulness of that aid only if it was granted in compliance with the procedure laid down by Article 88 EC and, second, that the procedures provided for in Protocol No 2 on ECSC products to the Association Agreement of 16 December 1991,
2 by which the contested aid had been brought to the attention of the Commission and the Council, could not give rise to a legitimate expectation on the part of the appellants. It is common ground that no formal notification of the contested aid could take place under Article 88 EC, since the Republic of Poland was not yet a member of the European Union at that time, and that the Commission was indeed informed of the existence of that aid and took the view, following the examination of the Polish restructuring programme and the undertakings' plans submitted in that context, that they satisfied the requirements of Article 8(4) of Protocol No 2 to the Association Agreement and the conditions laid down in Protocol No 8 to the Act of Accession.
By their third and last ground of appeal, the appellants rely on an infringement of Regulation (EC) No 659/1999
3 and Regulation (EC) No 794/2004.
4 Under those regulations, the fact that the interest rate applicable to the recovery of contested aid is fixed in close cooperation with the Member State concerned does not suffice for that rate to be regarded as an 'appropriate' rate within the meaning of Article 14(2) of Regulation (EC) No 659/1999. The 'appropriate' nature of the interest rate applicable to the recovery of State aid is a substantive concept independent of the procedure which the Commission must follow in the exceptional cases in which it fixes the rate in cooperation with the Member State concerned.